News from the Compact ban - The crisis of press freedom is an opportunity

Originally published in German by Nachdenkseiten. 

Jürgen Elsässer and his team will be able to continue to publish Compact magazine for the time being. The consequences of the aggressive decision to close down the magazine, taken by Federal Interior Minister, Nancy Faeser, were halted, for the time being, by the Federal Administrative Court in a ruling on 14 August. In the following commentary, Maike Gosch explains why this victory for freedom of the press and freedom of opinion should not leave us completely relaxed and what needs to be done next. 

Yesterday at midday, 14 August 2020, Jürgen Elsässer announced that the Federal Administrative Court had partially suspended the enforcement of the government’s attempt to close down Compact Magazin. Compact Magazin GmbH had previously been banned by the Ministry of the Interior. Immediate enforcement had been ordered, which means that the ban was initially enforceable until a proper judicial clarification in the main proceedings (which is certainly not expected for another 2 to 3 years). The parties concerned appealed both against the main proceedings and also against the immediate enforcement. The urgent application has now been granted. The fact that the decision was only ‘partial’ does not refer to the content of the ban, but to the fact that there were other applicants in addition to the Public Limited Company and Jürgen Elsässer personally who also submitted applications (referred to as ‘members’ in the court's press release, presumably the employees), which were rejected.

This defeat of Ms Faeser, and of the Ministry of the Interior and Home Affairs, was rightly celebrated online as a victory for press freedom. I must also say that I breathed a sigh of relief when I read the news. I had hoped that this would be the outcome because, in my opinion, our free and democratic basic order would have been dealt a significant blow if the court had ruled differently. Mr Elsässer and his team can now resume their work.  The money, as well as the laptops, tables, chairs and all the tools that were confiscated with German thoroughness in the large-scale operation must now be returned - unless they are still needed for the evaluation.

However, the joy over this decision is not entirely unclouded. Unfortunately, the court also stated the following:

‘Although there are no objections to the applicability of the Associations Act to the applicant no. 1, which is organised in the legal form of a limited liability company and operates as a press and media company, there is every indication that the prohibition order is formally lawful.’

What is meant here is that the law on associations also applies to a limited liability company which publishes magazines or newspapers. Unfortunately, however, the court has not addressed the delicate question of the application of the law on associations to circumvent press law regulations and the legal system in relation to press and media products, which are intended specifically to protect and safeguard freedom of the press and freedom of opinion in Germany.  I hope it will do so in the main proceedings, or at the latest before the Federal Constitutional Court, should it come to that. However, I consider this point to be central. Professor Ulrich Vosgerau from Jürgen Elsässer's and the Compact GmbH’s legal team also expressed similar thoughts. We cannot rest easy yet.

The decision was founded on the lack of proportionality of the ban, and on the existence of possible milder means such as press and media law measures against individual articles, event bans, etc.  It was also founded on the fact that the Compact Magazin’s interest in the suspension of the order outweighs the public interest in immediate enforcement. Fortunately, the special weight of the fundamental rights to freedom of opinion and freedom of the press was at least mentioned and taken into account in this consideration.

Since this court decision, there have been increasing calls on X and in the alternative media for the Interior Minister to resign, but I do not expect her to do so, even though Wolfgang Kubicki from the coalition partner FDP has suggested that she do so. If there is one thing we have learnt during the time in office of the current government, it is the incredible persistence of its ministers and the incredibly timid restraint of the Federal Chancellor, who does not sack them no matter how serious their misconduct. In earlier times, what many current members of the government have done in recent years would have been enough to make them resign ten times over. One can only assume that a kind of ‘domino theory’ is being held here, i.e. the concern that if a single resignation is allowed, the whole team could topple like dominoes one after the other.

But back to us, the citizens. What do we make of what is happening? Yesterday, I actually had a very optimistic thought: what if this crisis of freedom of expression and freedom of the press in which we find ourselves in Germany also harbours an opportunity? For me, as a West German, we have been living in a kind of ‘supervised’ democracy in Germany since the Second World War. We have always had the feeling democracy was given to us and that we did not fight for it ourselves, as the East Germans did in 1989. 1990 was such an opportunity to really make it our own, to fill it with even more life. We squandered this opportunity - or it was taken away from us.

A large majority of us perhaps also took freedom of opinion and freedom of the press for granted for far too long. We did not think we had to fight for it. We largely left the protection of our democracy and fundamental rights to the state. Since the coronavirus crisis, many people have realised that this does not work anymore and have stood up for our fundamental rights with great courage and at great risk. The media, politicians and large sections of the population have ridiculed and mocked them for this. But now more and more people are slowly realising that they were right.

There is a great speech by U.S. dissident Ehren Watada, a former Army officer who refused the order to deploy to Iraq because he (rightly) believed it was an immoral and illegal war of aggression and was threatened with prison for doing so. In this speech he said the following words:

“Democracy is not a spectator sport. In a Democracy, everyone is a politician.“

I remember feeling something like a surge of energy while listening to him say this in 2007, and at the same time realising how little what he was describing corresponded to my perception - and that of many fellow citizens - of the political atmosphere in Germany.

Perhaps these attacks on freedom of speech and the press, which have been increasing and intensifying, are an opportunity for even more of us to get up from our spectator seats and take our place on the pitch. In my opinion, this tightening of measures is also the result of great fear and excessive demands on the part of politicians who, perhaps because of our passivity, have been left too much alone with the great task of shaping, living and protecting our democracy.

The German government recently adopted the strategy ‘Together for democracy and against extremism’. That's a good thing, I say. That's how it should be. But not as an initiative that works from the top down, as is currently the case and excludes large sections of the population, labelling them as extremists. But rather as a task that we as citizens fulfil ourselves. In the Olympic spirit I’d say: ‘Let the Games begin!’